Wilson v. Wetzel et al

Filing 53

MEMORANDUM Pursuant to the standards developed in Estelle and Durmer, and given the circumstances as set forth in the Complaint, the failure of PA Daya to conduct a more thorough evaluation of the Plaintiffs nagging headache because loud boisterous c ircumstances existing in the RHU impeded her ability to communicate with Inmate Wilson at best sound in negligence, not deliberate indifference. Whooten v. Bussanich, No. 07-1441, slip op. at 4 (3d Cir. Sept. 12,2007)(citation omitted). Thus, entry of dismissal in favor of Defendant Daya with respect to the claim that she acted with deliberate indifference to a serious medical need Plaintiff was experiencing on July 24, 2011 is appropriate. Signed by Honorable Richard P. Conaboy on 2/19/13. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

LAWRENCE MARVIN WILSON,
Plaintiff
v.
SECRETARY JOHN WETZEL, ET AL.,
Defendants

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CIVIL NO. 3:CV-12-516
(Judge Conaboy)

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MEMORANDUM
Background
Lawrence Marvin Wilson, an inmate presently confined at the
State Correctional Institution, Coal Township, Pennsylvania (SCICoal Twp.), initiated this pro se civil rights action pursuant to
42 U.S.C. § 1983.

By Order dated April 9, 2012, Plaintiff’s

proposed amended prayer for relief (Doc. 9) was accepted.
Presently pending is a motion to dismiss the Complaint filed
by Jennifer Daya, P.A.

See Doc. 25.

The motion has been briefed

and is ripe for consideration.
Named as Defendants are Secretary John Wetzel, Regional
Superintendent M. Clopotoski, and Chief Grievance Officer Dorina
Varner of the Pennsylvania Department of Corrections (DOC).
Plaintiff is also proceeding against the following SCI-Coal Twp.
Officials: Superintendent David Varano; Deputy Superintendent Ronda
Ellett; ex-Deputy Superintendent Robert MacMillan; acting Deputy
Superintendent G. Miller; Health Care Administrator Kathryn
McCarty; Grievance Coordinator Kandis Discani; Restricted Housing
Unit (RHU) Lieutenants N. Folk and G. Burns; Correctional Officer

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T. Bendas; RHU Captain J. T. Madden; Major Michael Miller and
“Medical Physician” G. Daya.1

Doc. 1, ¶ 16.

Plaintiff describes himself as being “a faith believer and
follower of the Hebrew-Israelite Culture/Religion.”

Doc. 1, ¶ 26.

He states that he was housed in the SCI-Coal Twp. RHU on September,
2010 during the holy fast day of Gedaliah.2

Inmate participants in

the Gedaliah related fasting are provided with a kosher bag meal
during this holy day fast.

Plaintiff initially claims that he

improperly denied his kosher bag meal because he was on a modified
food loaf meal restriction.3

There are no assertions raised

against Defendant Daya with respect to this portion of the
Complaint.
The second part of the Complaint asserts that due to the
December 2010 removal of cell light switches from the individual
RHU cells there is 16 hours of bright constant illumination from a
double candle fluorescent light.

In addition, even when that light

is dimmed, a single red dim candle fluorescent light remains on 24
hours a day.

Plaintiff claims that this constant illumination in

the RHU constitutes cruel and unusual punishment and caused him to
develop constant headaches, eye pain, mental stress, and
depression.

See id. at ¶ 55.

1. Daya notes that she is a Physicians’ Assistant (PA) and not a
medical doctor. See Doc. 26, p. 1.
2. Plaintiff explains that during Gedliah there is a a sixteen
(16) hour fast from sunrise September 12, 2010 to sundown that same
day.
3. The Complaint indicates that the restriction was imposed
because Wilson failed to return a food tray.
2

With respect to Defendant PA Daya, Wilson states that on
July 23, 2011 he filed a sick call request because he was suffering
a migraine headache due to the constant RHU illumination.
following day, PA Daya went to Plaintiff’s RHU cell.
87.

The

See id. at ¶

According to the Complaint, Daya could not hear Wilson’s

description of his medical problems due to excessive noise being
generated by other RHU prisoners.

As a result, Daya left the

housing unit without taking any further action.
When Plaintiff filed a request slip regarding Daya’s
abbreviated visit, HSA McCarty allegedly responded by stating that
according to the record, when Daya approached Wilson’s cell the
inmate was laughing and smiling so no medical emergency was noted.
See id. at ¶ 92.

It is also asserted that due to the loud

boisterous conduct of the RHU inmates that day, the Plaintiff was
not singled out by Daya as she also decided not visit a few other
prisoners.
Plaintiff then filed an institutional grievance against
Daya, the Complaint argues that Deputy Superintendent Miller’s
response improperly denied the grievance on the basis that Daya
concluded that Wilson’s complaint of a headache did not constitute
a medical emergency and that the inmate could wait to be seen the
next day.

See id. at ¶ 95.

There are no other claims ain the

Complaint raised against Defendant Daya.
Discussion
PA Daya’s pending motion argues that she is entitled to
entry of dismissal because the Complaint has not set forth facts
which could support of deliberate indifference to a serious medical
need.

See Doc. 26, p. 5.
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Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for the
dismissal of complaints that fail to state a claim upon which
relief can be granted.

When ruling on a motion to dismiss under

Rule 12(b)(6), the court must “accept as true all factual
allegations in the complaint and all reasonable inferences that can
be drawn therefrom, and view them in the light most favorable to
the plaintiff.”

Kanter v. Barella, 489 F.3d 170, 177 (3d Cir.

2007)(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).
A plaintiff must present facts that, if true, demonstrate a
plausible right to relief.

See Fed. R. Civ. P. 8(a)(stating that

the complaint should include “a short and plain statement of the
claim showing that the pleader is entitled to relief”); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This requirement

“calls for enough facts to raise a reasonable expectation that
discovery will reveal evidence of” the necessary elements of the
plaintiff’s cause of action.

Id. at 556.

A complaint must contain

“more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, ___ U.S. ____ , 129 S.Ct 1937, 1949
(2009). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice.” Iqbal, 129
S.Ct at 1949.

Legal conclusions must be supported by factual

allegations and the complaint must state a plausible claim for
relief.

See id. at 1950.
“Factual allegations must be enough to raise a right to

relief above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in fact).”

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Twombly, at 555.

The reviewing court must determine whether the

complaint “contain[s] either direct or inferential allegations
respecting all the material elements necessary to sustain recovery
under some viable legal theory.”

Id. at 562; see also Phillips v.

County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008)(in order to
survive a motion to dismiss, a plaintiff must allege in his
complaint “enough facts to raise a reasonable expectation that
discovery will reveal evidence of the necessary element[s]” of a
particular cause of action).

Additionally, pro se pleadings are to

be construed liberally, Haines v. Kerner, 404 U.S. 519, 520 (1972).
Deliberate Indifference
A plaintiff, in order to state an actionable civil rights
claim, must plead two essential elements:

(1) that the conduct

complained of was committed by a person acting under color of law,
and (2) that said conduct deprived the plaintiff of a right,
privilege, or immunity secured by the Constitution or laws of the
United States.

See Groman v. Township of Manalapan, 47 F.3d 628,

638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135,
1141-42 (3d Cir. 1990).
Federal civil rights claims brought under § 1983 cannot be
premised on a theory of respondeat superior.

Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Rather, each

named defendant must be shown, via the complaint's allegations, to
have been personally involved in the events or occurrences which
underlie a claim.

See Rizzo v. Goode, 423 U.S. 362 (1976); Hampton

v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976).
The Eighth Amendment “requires prison officials to provide
basic medical treatment to those whom it has incarcerated.”
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Rouse

v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v.
Gamble, 429 U.S. 97 (1976)).

In order to establish an Eighth

Amendment medical claim, an inmate must allege acts or omissions by
prison officials sufficiently harmful to evidence deliberate
indifference to a serious medical need.

See Spruill v. Gillis, 372

F.3d 218, 235-36 (3d Cir. 2004); Natale v. Camden Cty. Correctional
Facility, 318 F.3d 575, 582 (3d Cir. 2003).

In the context of

medical care, the relevant inquiry is whether the defendant was:
(1) deliberately indifferent (the subjective component) to (2) the
plaintiff’s serious medical needs (the objective component).
Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d
Cir. 1987); West v. Keve, 571 F.2d 158, 161 (3d Cir. 1979).
PA Daya asserts that Plaintiff has not met the serious
medical need threshold because “[t]he headache alleged in this case
does not rise to the level of a condition that has been diagnosed
by a physician as requiring treatment or one that is so obvious
that a lay person would easily recognize the necessity for a
doctor’s attention.”

Doc. 26, p. 5.

A serious medical need is “one that has been diagnosed by a
physician as requiring treatment or one that is so obvious that a
lay person would easily recognize the necessity for a doctor’s
attention.”

Mines v. Levi, 2009 WL 839011 *7 (E.D. Pa. March 26,

2009)(quoting Colburn, 946 F.2d at 1023); Monmouth Cty. Corr. Inst.
Inmates, 834 F.2d at 347.

“[I]f unnecessary and wanton infliction

of pain results as a consequence of denial or delay in the
provision of adequate medical care, the medical need is of the
serious nature contemplated by the Eighth Amendment.” Young v.

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Kazmerski, 266 Fed. Appx. 191, 193 (3d Cir. 2008)(quoting Monmouth
Cty. Corr. Inst. Inmates, 834 F.2d at 347).
Plaintiff alleges that prior to his headache of July 23,
2011 he developed other headaches and eye pain.

The Complaint

further maintains that Wilson passed out in his cell on March 23,
2011 and April 7, 2011.

However, there is no claim that Daya was

involved in his treatment following those purported incidents or
otherwise had knowledge of those events.
Rather, it is only asserted that Plaintiff developed a
headache on July 23, 2011 for which he submitted a medical request
slip.

It is particularly noted that there is no indication in the

Complaint as to whether Wilson was still suffering from the
headache when PA Daya arrived at his cell the next day.
Plaintiff’s opposing brief contains a passing assertion that his
nagging headache persisted until July 26, 2011.

See Doc. 35, ¶ 14.

However, the Complaint includes assertions which indicate that when
Defendant Daya arrived at Wilson’s cell the inmate was laughing and
smiling.

Accordingly, this Court agrees that it is questionable as

to whether Plaintiff’s condition on July 24, 2011 satisfies the
Estelle serious medical need threshold.

See generally Heath v.

Shannon, 442 Fed Appx. 712, 716 (3d Cir. 2011)(expert testimony may
be required to establish that migraine headaches constitute a
serious medical need).
Assuming that Plaintiff did have a serious medical need,
Daya alternatively asserts that her alleged conduct does not
support a viable claim of deliberate indifference.

With respect to

the subjective deliberate indifference component, the Supreme Court
has established that the proper analysis for deliberate
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indifference is whether a prison official “acted or failed to act
despite his knowledge of a substantial risk of serious harm.”
Farmer v. Brennan, 511 U.S. 825, 841 (1994).

A complaint that a

physician or a medical department “has been negligent in diagnosing
or treating a medical condition does not state a valid claim of
medical mistreatment under the Eighth Amendment [as] medical
malpractice does not become a constitutional violation merely
because the victim is a prisoner.”

Estelle, 429 U.S. at 106.

When a prisoner has actually been provided with medical
treatment, one cannot always conclude that, if such treatment was
inadequate, it was no more than mere negligence.
O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993).

See Durmer v.

It is true, however,

that if inadequate treatment results simply from an error in
medical judgment, there is no constitutional violation.

See id.

However, where a failure or delay in providing prescribed treatment
is deliberate and motivated by non-medical factors, a
constitutional claim may be presented.

See id.; Ordonez v. Yost,

289 Fed. Appx. 553, 555 (3d Cir. 2008)(“deliberate indifference is
proven if necessary medical treatment is delayed for non-medical
reasons.”).
There is no claim that Daya had any personal involvement in
Plaintiff’s care after he allegedly passed out in his cell on both
March 23, 2011 and April 7, 2011. Rather, it is alleged only that
Daya was deliberately indifferent to Plaintiff’s condition the day
after he complained of a headache on July 23, 2011.
The Complaint contains no indication that Plaintiff was
still suffering from the headache on July 24, 2011.

The Complaint

also does not maintain that Wilson’s condition worsened after Daya
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left.

It is equally undisputed that Daya went to Plaintiff’s cell

on said date and personally viewed his condition.

Moreover, there

are also assertions in the Complaint indicating that Wilson may
have been viewed as laughing and smiling upon Daya’s arrival.
There also no contentions that Plaintiff was in fact in need
of any further treatment on said date.

The Complaint does not

claim that he received or required any type of treatment for his
headache after Daya’s visit.4

In fact, the Complaint indicates

that Wilson did not seek any further medical help until
approximately three (30 weeks later when he was treated by another
member of the prison’s medical staff for eye problems (not a
headache) on August 16-17, 2011.

Moreover, Plaintiff does not

state that he suffered another headache until October 24, 2011,
approximately three (3) months later.

See id. at ¶ 123.

Likewise,

there is no allegation that Daya’s failure to take any immediate
action aggravated any preexisting condition.
Pursuant to the standards developed in Estelle and Durmer,
and given the circumstances as set forth in the Complaint, the
failure of PA Daya to conduct a more thorough evaluation of the
Plaintiff’s nagging headache because loud boisterous circumstances
existing in the RHU impeded her ability to communicate with Inmate
Wilson at best sound in negligence, not deliberate indifference.
Whooten v. Bussanich, No. 07-1441, slip op. at 4 (3d Cir. Sept. 12,

4. Plaintiff’s opposing brief does include a brief assertion that
his nagging headache did not subside until July 26, 2011. Doc. 35,
¶ 14. Although the Plaintiff contains numerous contentions as to
his condition over following months, there is no allegation therein
that his headache lasted until July 26, 2011. Moreover, the
opposing brief does not allege that any additional treatment was
needed to bring about the end of his headache.
9

2007)(citation omitted).

Thus, entry of dismissal in favor of

Defendant Daya with respect to the claim that she acted with
deliberate indifference to a serious medical need Plaintiff was
experiencing on July 24, 2011 is appropriate.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED; FEBRUARY 19, 2013

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